PEOPLE v. WALKER

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PEOPLE v. WALKER

March 2, 1999
No. 203630
LC No. 96-003193
Recorder’s Court

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v.

ALONZO E. WALKER, JR.

Defendant-Appellant.

Before: Whitbeck, P.J., and Cavanagh and
Griffin, JJ.
WHITBECK, J.

A jury found defendant guilty of burning of
personal property over $50.00 in value, MCL 750.74; MSA 28.269,
and malicious destruction of personal property over $100.00 in
value, MCL 750.377a; MSA 28.609(1). The trial court sentenced
defendant to thirty-two to forty-eight months in prison for each
conviction. Those sentences were then vacated and defendant
received an enhanced sentence of five to fifteen years’
imprisonment as an habitual fourth offender pursuant to MCL
769.12; MSA 28.1084. Defendant appeals as of right and argues
that his conviction of both burning of personal property over
$50.00 and malicious destruction of property over $100.00
violates the constitutional protections against double jeopardy
and that his conviction as a fourth habitual offender must be
vacated because the prosecutor failed to file a proof of service
of the notice of enhancement as required by statute. We reject
both these claims and affirm.

I. Basic Facts

Defendant was charged in connection with the
destruction in April of 1996 of a car owned by complainant and
parked in front of complainant’s residence at 6660 Otis in
Detroit. 6660 Otis is across the street from the residence of
complainant’s father and next door to the residence of
defendant’s father and, apparently, there was a long
standing dispute between complainant’s father and
defendant’s father. Complainant testified at trial that her
car was fire bombed. According to her testimony, in the evening
of the day in question, complainant looked out the window of her
residence and saw defendant next to her car. Complainant
testified that she saw defendant’s hand come down, heard a
"pop" noise and then saw that her car was on fire.
Complainant’s father also testified at trial that he
observed defendant make a motion with his hands, following which
he heard a "boom" and saw flames. Defendant presented
several alibi witnesses whose testimony indicated that defendant
was at the home of his brother at the time of the incident.
However, the jury convicted defendant of both the charged
offenses, and the trial court sentenced him as outlined above.

II. Standard Of Review

A. Double Jeopardy

"A double jeopardy issue constitutes a
question of law that is reviewed de novo on appeal." People
v Lugo, 214 Mich App 699, 705; 542 NW2d 921 (1995). Defendant
failed to raise this issue below. However, this Court may still
consider the issue because it involves a significant
constitutional question, id.

B. Filing Of Proof Of Service

Whether defendant’s right to due process
was violated is a question of law. This Court reviews questions
of law de novo. People v Connor, 209 Mich App 419, 423;
531 NW2d 734 (1995). Defendant failed to raise this issue below.
Since defendant is claiming that his right to due process was
violated, this Court may review the issue to the extent that it
involves a significant constitutional question. Lugo, supraat 705.

Any person who wilfully and maliciously burns
any personal property, other than that specified in the
preceding sections, owned by himselfor another
shall, if the value of the personal property burned or
intended to be so burned be $50.00 or less, be guilty of a
misdemeanor. If the value of the personal property burned or
intended to be so burned be more than $50.00, such person
shall be guilty of a felony. [Emphasis supplied.]

Any person who shall wilfully and
maliciously destroy or injure the personal
property of another, by any means not particularly
mentioned or described in the preceding section, if the
damage resulting from such injury shall exceed $100.00, shall
be guilty of a felony. If the damage done shall be $100.00 or
less, such person shall be guilty of a misdemeanor. [Emphasis
supplied.]

IV. Constitutional Provisions

A. Double Jeopardy

(1) United States Constitution

US Const, Am V provides:

No person shall be . . .subject
for the same offence to be twice put in jeopardy of life
or limb . . . .

(2) Michigan Constitution

Const 1963, art 1, Sect. 15 provides:

No person shall be subject for the same
offense to be twice put in jeopardy
. . . .

B. Due Process

(1) United States Constitution

US Const, Am XIV, Sect. 1, provides:

. . . . No State shall
. . . deprive any person of life, liberty, or
property, without due process of law
. . . .

(2) Michigan Constitution

Const 1963, art 1, Sect. 17 provides:

No person shall be . . .
deprived of life, liberty or property, without due
process of law . . . .

V. Double Jeopardy

A. Introduction

We hold that defendant’s convictions of
burning of personal property over $50.00, and malicious
destruction of personal property over $100.00 did not violate the
constitutional protections against double jeopardy. By way of
introduction, we note that the double jeopardy provisions of the
federal and state constitutions, US Const, Am V; Const 1963, art
1, Sect. 15, ensure that a defendant’s total punishment
does not exceed that authorized by the Legislature. Lugo, supraat 705-706.

This protection is a limitation on the
courts and the prosecutors, not on the Legislature’s
power to define crimes and fix punishments. Thus, this
Court’s inquiry when determining whether the Legislature
intended to authorize cumulative punishment for certain
criminal conduct necessarily focuses on the intent of the
Legislature.

When ascertaining the intent of the
Legislature in enacting criminal statutes, this Court has
traditionally considered several factors. We look to whether
the respective statutes prohibit conduct violative of
distinct social norms, the punishments authorized by the
statutes, whether the statutes are hierarchical or
cumulative, and any other factors indicative of legislative
intent. Comparison of the elements of the offenses is often a
useful tool. [People v Griffis, 218 Mich App 95,
100-101; 553 NW2d 642 (1996) (citations omitted).]

We note in this regard that the Double Jeopardy
Clause of the United States Constitution actually protects
against two separate transgressions. North Carolina v Pearce,
395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The first
is a protection against "multiple punishment," i.e.
being punished more than once for the same offense. See Brown
v Ohio, 432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977).
The second is a protection against "successive
prosecution," i.e. being prosecuted a second time for the
same offense after acquittal. Id. at 165, quoting United
States v Jorn, 400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543
(1971) (plurality opinion). The Courts in Michigan have observed
a similar categorization. See People v Robideau, 419 Mich
458, 484; 355 NW2d 592 (1984). Here, we are clearly dealing with
the first category and we must therefore address the question of
whether the burning of personal property statute and the
malicious destruction of personal property statute provide for
multiple punishments for the same offense.

B. The Blockburger Test

Defendant cites us to United States v Dixon,
509 US 688; 113 S Ct 2849; 125 L Ed 2d 556 (1993) for the
proposition that the test for multiple punishment is whether the
two charges contain the "same elements." This
"same elements" test was most concretely articulated inBlockburger v United States, 284 US 299; 52 S Ct 180; 76 L
Ed 306 (1932) and is often, therefore, referred to as the "Blockburger
test." See Dixon, supra at 696-697. In pertinent
part, Blockburger involved charges of violations of the
Harrison Narcotic Act, 26 USC Sect. 696. The third count of the
indictment in question charged a sale of eight grains of a drug
"not in or from the original stamped package" while the
fifth count charged that sale also as having been "made not
in pursuance of a written order of the purchaser" as
required by the statute. Citing to Gavieres v United States,
220 US 338, 342; 31 S Ct 421; 55 L Ed 489 (1911), the United
States Supreme Court articulated the following rule:

The applicable rule is that where the same
act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each
provision requires proof of an additional fact which the
other does not. [Blockburger, supra at 304.]

We are puzzled by defendant’s reliance on Dixon
and, thus implicitly, on Blockburger. First, the Blockburger
test does not work to defendant’s benefit. The burning of
personal property charge in this case required proof of
"burning," e.g. the malicious use of fire, that the
malicious destruction of personal property charge simply did not.
Thus, the two offenses did not share the same elements
under Blockburger; the burning of personal property charge
required proof of an additional fact – burning – that
the malicious destruction of personal property charge did not.
Further, the Michigan Supreme Court abandoned the Blockburger
test insofar as the Michigan Constitution is concerned in Robideau,
supra. Robideau involved convictions in a single trial
of both first-degree criminal sexual conduct under MCL
750.520b(1)(c); MSA 28.788(2)(1) (penetration under circumstances
involving any "other felony") and the underlying
"other felony." The Court, citing Brown, supra,
noted that where multiple punishments are involved, the Double
Jeopardy Clause acts as a restraint on the prosecutor and the
courts, not the Legislature. Robideau, supra at 469. The
Court then returned to this theme when articulating its holding
concerning the Blockburger test:

Different interests are involved when the
issue is purely one of multiple punishments, without the
complications of a successive prosecution. The right to be
free from vexatious proceedings simply is not present. The
only interest of the defendant is in not having more
punishment imposed than that intended by the Legislature. The
intent of the Legislature, therefore, is determinative. Under
neither the federal nor the Michigan double jeopardy
provisions does this Court sit as a superlegislature,
instructing the Legislature on what it can make separate
crimes. As previously described, prior decisions of this
Court have applied a factual test in single-trial
multiple-punishment cases, creating areas in which arguably
the Legislature cannot now act. To the extent that those
decisions interpret the prohibition against double jeopardy
as a substantive limitation on the Legislature, we now
disavow them.

We are therefore left only with the
question of what the Legislature intended in cases such as
those at bar. As a means of determining that end, we find theBlockburger test to have questionable status in the
Supreme Court of the United States and find the propriety of
its use in any case to be questionable. When applied in the
abstract to the statutory elements of an offense, it merely
serves to identify true lesser included offenses. While it
may be true that the Legislature ordinarily does not intend
multiple punishments when one crime is completely subsumed in
another, Blockburger itself is of no aid in making the
ultimate determination. Although its creation of a
presumption may make a court’s task easier, it may also
induce a court to avoid difficult questions of legislative
intent in favor of the wooden application of a simplistic
test.

Because Blockburger was developed to
deal with situations where an identifiable single act falls
under the coverage of two statutes, it is even less helpful
when applied to a compound crime. In these crimes, the
Legislature has intentionally converted what would normally
be two discrete acts into one legislatively created
"act".

The difficulties with the Blockburger
test lead us to the conclusion that it should be abandoned.
The United States Supreme Court has declared that it is but a
test of statutory construction and not a principle of
constitutional law. Missouri v Hunter [459 US 359; 103
S Ct 673; 74 L Ed 2d 535 (1983)]. Indeed, it would be quite
contrary to established principles of federalism for the
United States Supreme Court to impose on the states the
method by which they must interpret the actions of their own
legislatures. We, therefore, find it within our power to
reject the Blockburger test, preferring instead to use
traditional means to determine the intent of the Legislature:
the subject, language, and history of the statutes. [Robideau,
supra at 485-486.]

The Court went on to provide guidelines for
determining legislative intent:

.…Statutes prohibiting conduct that is
violative of distinct social norms can generally be viewed as
separate and amenable to permitting multiple punishments. A
court must identify the type of harm the Legislature intended
to prevent. Where two statutes prohibit violations of the
same social norm, albeit in a somewhat different manner, as a
general principle it can be concluded that the Legislature
did not intend multiple punishments. . . .

A further source of legislative intent can
be found in the amount of punishment expressly authorized by
the Legislature. Our criminal statutes often build upon one
another. Where one statute incorporates most of the elements
of a base statute and then increases the penalty as compared
to the base statute, it is evidence that the Legislature did
not intend punishment under both statutes. The Legislature
has taken conduct from the base statute, decided that
aggravating conduct deserves additional punishment, and
imposed it accordingly, instead of imposing dual convictions.

We do not intend these principles to be an
exclusive list. Whatever sources of legislative intent exist
should be considered. If no conclusive evidence of
legislative intent can be discerned, the rule of lenity
requires the conclusion that separate punishments were not
intended. [Id. at 487-488.]

With this clear abandonment of the Blockburgertest for state constitutional purposes in mind, [1]we are somewhat
surprised that defendant, through his citation to Dixon, appears
to be suggesting that we should reinstate it for such purposes
upon our own initiative. We decline that invitation; rather,
below, we analyze the statutes and pertinent case law to
ascertain legislative intent.

We also are puzzled by another aspect of
defendant’s citation to Dixon. Defendant appears to
suggest that the same conduct underlay his conviction for
both burning of personal property and malicious destruction of
personal property. The "same conduct" test was
articulated by the United States Supreme Court in Grady v
Corbin, 495 US 508; 110 S Ct 2084; 109 L Ed 2d 548 (1990),
but was then was expressly and explicitly overruled in Dixon. SeeDixon, supra at 703.

C. Johnson and Ayers

Defendant contends that there is no clear
legislative intent to allow for two convictions, one under the
burning of personal property statute and the other under the
malicious destruction of personal property statute, and as such
the rule of lenity applies, stating that "[t]his precise
point was decided by this Court in People v Johnson,"
176 Mich App 312, 314-315; 439 NW2d 345 (1989). Again, we are
more than a little puzzled by defendant’s argument. Johnson
involved multiple convictions, one for larceny over $100, MCL
750.356; MSA 28.588, and the other for possession of stolen
property over $100, MCL 750.535; MSA 28.803. The Johnson
panel explicitly relied on Robideau to examine the issue
of whether the Legislature intended to authorize multiple
punishment under different statutes for a single criminal
transaction and utilized two criteria from Robideau:
whether each statute prohibits conduct violative of a social norm
distinct from that norm protected by the other statute and
whether the statutes are hierarchical or cumulative in nature,
i.e. "whether the statute prohibiting the greater offense
incorporates most of the elements of the base statute and builds
on that less serious offense by requiring a showing of some
aggravating conduct or factor, which is thereby punished more
harshly than the offense prohibited by the base statute." Id.
at 313-314.

The Johnson panel went on to find that
each of the two statutes at issue in that case "prohibits
conduct which violates the same social norm: theft of
property." Id. at 314. The Johnson panel then
concluded that, "Defendant could have been charged and
convicted under either statute for this theft, but not under both
of them." Id. at 315. Defendant here argues,
apparently by analogy, that there was a single
"burning" that makes up an element of both the burning
of personal property statute and the malicious destruction of
personal property statute. This argument is simply specious. The
burning of personal property statute deals with the
"burning" of personal property; the malicious
destruction of personal property statute deals with the
destruction or injury of personal property. While destruction or
injury can certainly be accomplished through "burning,"
manifestly they need not be. On their face, therefore, the two
statutes do not deal with the same elements. In essence,
defendant’s argument deals not with the elements of the two
statutes but rather with his own conduct, i.e. his
"burning" of complainant’s car. This is precisely
the "same conduct" test expressly and explicitly
overruled in Dixon.

We believe that the much closer analogy is to
this Court’s decision in People v Ayers, 213 Mich App
708, 716-721; 540 NW2d 791 (1995), a case not even mentioned by
defendant and one that, unlike Johnson, is binding upon
us. See MCR 7.215(H)(1). The Ayers panel held the
defendant’s convictions of both burning of a dwelling (also
referred to as "arson"), MCL 750.72; MSA 28.267, and
burning insured property, MCL 750.75; MSA 28.270, did not violate
double jeopardy. The two statutes were held to prohibit conduct
affecting distinct social norms. Id. at 720. One statute
protected habitation, while the other prevented fraud. Id.
While the arson statute protected persons who would be endangered
by fires in dwelling houses, the statue proscribing the burning
of insured property protected insurers from fraud. Id. TheAyers panel relied in part upon the differing elements of
the two offenses when determining that distinct social norms were
protected by the two statutes. Id., pp 720-721.

Here, defendant’s multiple punishments did
not violate double jeopardy protections because the two offenses
in question also protect distinct social norms. It is clear from
the language of the statutes that the prosecution must adduce
different evidence to prove each offense and that the Legislature
intended to protect a different class of persons. The malicious
destruction of personal property statute proscribes the willful
and malicious destruction or injury of the personal property of
another, by any means. By contrast, the burning of
personal property statute prohibits a person from wilfully and
maliciously burningany personal property, whether
owned by himself or another.

It is clear from the differing elements in each
statute that the Legislature intended to protect distinct social
norms. The malicious destruction of personal property statute
serves to protect the personal property of persons other than the
defendant, regardless of the manner in which the property
is destroyed. The burning of personal property statute, however,
protects against the setting of fires to destroy personal
property, regardless of whether the property is owned by
the defendant or by someone else. While the former statute
protects personal property, the latter proscribes the use of
fire.

It is clear that the malicious use of fire is a
danger to society regardless of whose property is being
burned. The Legislature has therefore protected a different class
of persons by each statute. While the malicious destruction of
personal property statute protects the owner of the property, the
burning of personal property statute protects anyone who may be
endangered by the malicious use, and possible spread, of fire. In
the instant case, for example, the malicious destruction of
personal property statute protected the owner of the property,
i.e. complainant, while the burning of personal property statute
protected anyone who may have been endangered by the
defendant’s use of fire to destroy complainant’s car.
See also, People v Peerenboom, 224 Mich App 195, 200; 568
NW2d 153 (1997) (attempted murder statute, which protects against
intentional killing, protects a distinct social norm from statute
prohibiting placement of explosives with intent to destroy, throw
down or injure property which protects against unintended or
intended harm to people).

Moreover, "the statutes do not involve a
hierarchy of offenses, i.e., a situation where one statute
incorporates most of the elements of a base statute and then
increases the penalty based on the presence of aggravating
conduct." Ayers, supra at 721. Rather, the two
statutes are aimed at protecting distinct social norms. One
statute prohibits the use of fire to destroy personal property
owned by the defendant or another, while the other statute
prohibits the use of any means to destroy or injure
another’s personal property. It is therefore clear that the
Legislature intended to permit cumulative punishment for the type
of conduct in which defendant engaged. We conclude that
defendant’s multiple punishments do not violate the
principle of double jeopardy.

VI. Filing Of Proof Of Service

We hold that defendant’s right to due
process was not violated when the prosecution failed to file a
proof of service of its notice of intent to enhance
defendant’s sentence. The sum total of defendant’s
argument is as follows:

MCL 769.13(2) requires that where the
prosecutor has filed a notice of enhancement of sentence,
"the prosecuting attorney shall file a written proof of
service with the clerk of the court." No proof of
service is in the court file. Failure to strictly follow the
requirements of this statute, which has no precedent in the
common law, violates the Defendant’s right to due
process under both the Michigan and U.S. Constitutions, Mich
Const. 1963, Art 1, Section 17; V, IVX [sic] Am., U.S.
Const., and Defendant’s sentence under this statute
should be vacated.

There is no question that MCL 769.13(2); MSA
28.1085(2), provides that the prosecution shall file in the lower
court a written proof of service of its notice of intent to seek
an enhanced sentence. Here, no such proof of service is contained
in the lower court file. Even if we were to assume, however, that
the prosecution failed to file the proof of service (as opposed
to the alternative explanation that the trial court clerk failed
to place the proof of service in the file), defendant has offered
no reason whatsoever for us to find that he is entitled to a
reversal of his convictions.

In particular, defendant asserts in a
conclusory fashion that his right to due process was violated by
the prosecution’s failure to file a proof of service.
Defendant has cited, and we have located, no authority whatsoever
to support such a proposition. In any event, reversal is not
warranted based upon this issue as any error was harmless beyond
a reasonable doubt. People v Graves, 458 Mich 476, 482;
581 NW2d 229 (1998). Defendant makes no claim that he did not
receive the notice of intent to enhance. Indeed, defense counsel
admitted at the sentencing hearing that the notice of intent had
been received; defendant simply contends that the proof of
service was not filed with the lower court. If true, this in no
way prejudiced defendant’s ability to respond to the
habitual offender charge.

Affirmed.

/s/ William C. Whitbeck
/s/ Richard Allen Griffin

I concur in result only.

/s/ Mark J. Cavanagh

FOOTNOTES:

[1]While Robideau
may indicate otherwise, under more recent case law, Blockburgerremains applicable in determining the Legislature’s
intent regarding multiple punishment for purposes of the federal
Double Jeopardy Clause. People v Denio, 454 Mich 691, 707;
564 NW2d 13 (1997). It is unclear whether defendant predicates
his argument only on the state Double Jeopardy Clause or on both
the federal and state Double Jeopardy Clause. In any event, it is
immaterial whether defendant intends to invoke the federal Double
Jeopardy Clause, as Blockburger does not work to
his benefit.